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Citizens approaching the courts for protecting lakes in cities is all very well. But in the end, it is a choice between using land for water or real estate -- a choice that has to be made. The Centre for Science and Environment provides a perspective
THERE is no need to establish here that all Indian cities face chronic water shortage, particularly during summers. That government agencies are increasingly failing to meet the water demand of a rising urban population. And that the water table is falling all the time due to over-extraction from underground aquifers. All cities in the country relied on lakes and other waterbodies — managed mostly by local bodies — that stored the monsoon rains for the remaining part of the year. But that was before the government took over water supply. And after the government took over most public lands in cities, the state of these lakes has become very sorry: they are waterless, polluted, silted up, encroached, built upon, commonly used as defecation grounds or simply outlets for sewage.
Here, we are more concerned with the number of public interest petitions filed in courts across the country to save lakes and other waterbodies in cities. The representative case studies presented here (see boxes) are only indicators. Down To Earth has details of several similar cases from various parts of the country. It is clearly a rising trend. There are certain common features to all the cases.
The judiciary has combined well with citizens’ groups to save several waterbodies in Indian cities. Let’s take a closer look at the circumstances that are creating this new consciousness.
The first hurdle: in a built up area, how do you ‘know’ a lake or its catchment? Take the case of Ahmedabad. A city of a few million was looted of its lakes and even their memory was buried in government records. Only after the court ordered the authorities to produce the details of land records did the matter come to light. There is no way the administration would have made the effort to dig up old records if ordinary citizens had demanded the information. Now, the high court committee has to identify the lakes that can be revived. For that it would need to set the criteria on which the decisions should be based, which would depend on priorities. At every stage, information is crucial, and the government infamously doesn’t like to share it. Vested interests will try their best to misrepresent the available information.
In Delhi, once 508 waterbodies were identified by a joint survey, the committee appointed by the court suggested killing waterbodies smaller than 4,000 sq metres. As if a 3,900- sq metre-waterbody was not worth conserving. Once the lakes of a city have been identified, then comes the tricky part: marking out the catchment. It is very difficult to establish the course that rainwater would take in a heavily built up area, as it cannot follow the natural gradient.
This is the main criticism of the Gujarat High Court order: there is no point in a blanket restriction on new construction in a built-up area as there is no scientific basis to show that rainwater would reach the lakes. But there are no studies to show a more viable distance that buildings should maintain. The court had to take a decision in the absence of data from either side. It ruled that water scarcity was too serious to ignore and applied the precautionary principle. Now, it is up to the committee to come up with scientific data to base decisions on.
People concerned about lakes are petitioning the Supreme Court or the high courts because there is no other legal framework to identify and protect them. Article 21 of the Indian Constitution (Protection of Life and Personal Liberty) has an indirect bearing on the matter. The Environment (Protection) Act and the Water (Prevention and Control of Pollution) Act can be used to notify certain ecologically harmful industries, operations and processes to protect waterbodies from pollution. The precautionary principle and the public trust doctrine (which makes the government the trustee and safe-keeper of all natural resources meant for public use) are also applicable, and various Supreme Court and high court orders have used these. The National Water Policy does mention waterbodies in the section on the revival of traditional water harvesting systems, but says little else. The Rs 637-crore National Lake Conservation Plan, launched in 1994 by the Union ministry of environment and forests, covers only 20 lakes across the country, including the Dal lake of Srinagar, where the plan has hardly worked (see p5).
Water, it must be remembered, is a state subject, and waterbodies in cities are at the mercy of land owning agencies of state governments, be they the departments of revenue, fisheries or urban development, or the municipalities or panchayats. States can legislate to protect them. Two states, Tamil Nadu and West Bengal, have laws that protect wetlands for fisheries. Legal experts say there are no laws specifically to protect urban waterbodies, while there are laws that protect waterbodies in villages.
If the revenue department, panchayats or municipalities decide to fill up a lake or turn it into a garbage dump, the only way possible is to challenge them through a PIL in the respective high court or the Supreme Court. Hence the large number of petitions in the higher courts to protect urban lakes. But protection of lakes and their catchment is only half the story. The real challenge lies in ensuring that these bodies are supplied unpolluted rainwater, that is, they are recharged.
Recharging urban waterbodies
There is only one way to convey rainwater to lakes in built up areas: stormwater drains. In all Indian cities, these drains connect with sewerage, which shows what municipal town planners think of rain. Even if a lot of effort is made to separate stormwater drains from sewerage, their maintenance is a major issue. A stormwater drain choked with garbage and silt is a common site in Indian cities. The municipality is responsible for their maintenance. Town planners point out that it is not enough to ensure effective, clean drains. Cascading tanks have traditionally been built in India to tap overflow. In modern cities, this is not possible as tanks/lakes are in the middle of heavily built up areas and an overflowing lake can mean serious flooding. The way out, town planners say, is interconnecting lakes.
“Stormwater runoff problems are addressed most effectively by sound land use planning... Urban local bodies are required to recognise that storm water runoff control should be incorporated into the routine planning functions of local governments...,” writes Amit Kakde, an engineer in a paper for the Centre for Environmental Planning and Technology.
After serious flooding during the 2000 monsoon, the Ahmedabad Urban Development Authority (AUDA) initiated its Rs 4.5-crore Vastrapur Lake Development Project. The project includes extensive stormwater drains leading to the lake as well as extensive use of recharge wells. Moreover, provision has been made to connect the Vastrapur lake to the lake at Prahaladnagar, where AUDA has an ambitious housing development project. The authority has also provided for low-cost housing to the people who live in shanties built around the lake. But Vastrapur is a high-profile area where the administration is willing to put in money. How many other Rs 4.5-crore schemes can AUDA come up with?
Real estate matters
Many of the cases presented here show petitioners running into trouble with real estate developers. The politician-bureaucracybuilder nexus is nothing new to India and has contributed liberally to the Indian urban nightmare. Be it safety features like fire fighting measures and making buildings that can hold their own in earthquakes, builders have always managed to flout norms (see ‘Republic Quaked’ Down To Earth, Vol 8, No 19, February 28, 2001). Encroaching lands of lakes is hardly a consideration for land sharks. Nimesh Patel, an architect who works with INTACH (Indian National Trust for Art and Cultural Heritage), points out that apartment blocks constructed on filled up lakes fared quite badly in comparative terms in the massive earthquake of January 26, 2001.
The muscle power of builders and their willingness to use it is reflected in the Bhimtal case, where the real estate developers threatened the people protesting against their constructions. Their political clout can be judged by the fact that after the high court order restricting new constructions in a radius of 500-1,000 metres around lakes, the Gujarat government changed the General Development Control Regulations to permit construction nine metres away from waterbodies. Rajeev Kathpalia, town planner and architect, is opposed to the very idea of blanket building by-laws as they are notified in Indian cities. He says they don’t make for efficient town planning as they don’t take into account the varying conditions within a city.
The reluctance of urban development authorities and municipalities to protect lakes is clear in Ahmedabad. They are yet to submit any concrete plans to recharge lakes and remove encroachments more than 20 months after the petition was filed. Removing encroachments is no easy task as the poor people who live in shanties have nowhere to go. Resettlement of encroachers has always been controversial. Governments have seldom shown the commitment to find viable solutions, while politicians have exploited the poor for political mileage in elections. To expect the authorities to act in the absence of any strictures would perhaps amount to criminal negligence. But how many cases can the judiciary deal with? For every lake that the courts protect under PIL, there are countless lakes that never get a mention. So what is the answer?
Courts and beyond
The judiciary and the civil society have had to step in because the executive has failed miserably in protecting lakes. But in the end, the courts have to rely on the executive to implement its orders, and they function under the law of the land, which are not clear at all with regard to urban waterbodies. So is it a stalemate? Not quite. The fact that the courts have been successful in protecting at least a few lakes in cities is proof enough that there is room enough in the Indian Constitution and democratic process for protecting lakes. What is lacking is a structured framework that lays down the government’s responsibility clearly. Who will lay down that responsibility? Or is it possible to take protection and maintenance of urban waterbodies completely out of the governments hands and hand them over to urban communities?
Complete decentralisation is not viable given the peculiarity of the urban context. For one, it is much easier to rural communities to take up water conservation and protection of waterbodies, and there are several examples of the same. Cities are different: there is a much bigger premium on real estate, builders and other vested interests are very strong, a number of different government agencies own most of the public lands and the politics of cities work very differently. The concept of voluntary labour (shramdaan, which has been the backbone of many a rural water conservation schemes in India) is not prevalent in cities. And the shocking levels of pollution — of air, water and land — in cities takes the matter into another realm altogether.
A public-government partnership is essential in this. One possibility is municipalities tying up with residents’ welfare associations to maintain lakes, their catchment and stormwater drains. But such a set-up needs to be well defined in legal/ administrative terms, and controlled by adequate scientific know-how and monitoring by pollution control boards. Till some such things happen, the courts will keep coming down heavily on the authorities every now and then — they have made it clear that costs should not be a consideration in an important environmental issue. You will have a court asking the police to protect urban waterbodies. Or a court bringing all new construction to a halt. “People who talk about the futlity of lakes have too much silt in their heads,” says Anupam Mishra of the environment cell at Gandhi Peace Foundation, New Delhi. “We need to desilt our heads before desilting lakes.”
Based on research by Nayanika Singh and Suresh Babu